"(2B) An order made under subsection (1)(b) shall not affect "property" that consists in rights or duties arising from or under a contract of employment, and the provisions of such an order shall not directly or indirectly affect the conditions of service of fire brigade members.""

The noble Lord said: My Lords, in a sense, the amendment is a mirror image of the one that I have just withdrawn. Although, until a few minutes ago, I had some hopes for it, they are now dimming as the sun sets. As the Bill stands, an order under Clause 1(1)(b) giving directions to fire authority employers could very easily have obligatory consequences that affect the conditions of work of firefighters. An example taken often in Grand Committee is the closure of a station. An order giving directions to close a station,

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or changes in the use of appliances on shift work, could have immediate results on employees' conditions of work.

The Government have stated that they do not mean that to happen, and the amendment throws no doubt on that intention. But there is abundant authority that the Government's intentions do not control the interpretation of the Act in the courts. If Parliament does its joband this is the only House to debate the powers in detailit is concerned with what the powers are that are placed on the statute book. To ignore that is to treat this House as a talking shop and a club where people stroll through the Lobbies without much consideration.

Not every order under Clause 1(1)(b) will necessarily affect the working conditions of members of a fire brigade. When we considered the provision in Grand Committee, the Minister said:

"I must make it clearI think that I did so earlierthat directions to the fire authorities under Clause 1(1)(b) are not intended to be a direct or indirect way of affecting the employment contracts of fire brigade staff. I also gave the example that it could happen that a direction about the use of assetsthe physical assets in a stationcould have an impact on staff, but that is not the route by which we would seek to change the terms and conditions for staff. We have a power in Clause 1(1)(a) to do that directly

that is a very interesting formulation

"so there is no reason to use an indirect route. I can tell noble Lords that we have no plans to use any orders made under Clause 1(1)(b) to affect the rights arising from contracts for work or services. It might happen, purely as an incidental side-effect of a kind of order".

He went on to say:

"We do not want to use the power, and the Bill is drafted widely enough to cope with any disputes . . . I gave examples originally of appliances remaining in stations when they could be used by somebody else. Clearly, the public did not understand what happened during the previous dispute, so we must overcome that. If it were difficult or impossible to use the powers in respect of, say, an appliance or some specialist piece of equipment . . . that was needed, we could not say to the public, 'Well, we would have liked to have an order to make sure that we could use an aerial platform, but we could not because it would have affected some exclusion in the Bill about contracts'".[Official Report, 14/7/03; col. GC194.]

By "contracts" the Minister meant contracts of employment.

We accept all that. But we accept also that, as the Minister said, there would be incidental effects on the working conditions of firefighters. Their duty would be not to do anything to disturb an order coming into effect and operation under Clause 1(1)(b). That is why we have drafted our amendment in its current form:

"An order made under subsection (1)(b) should not affect 'property'"

it normally would

"[in the form of] rights or duties arising from or under a contract of employment".

Rights and duties under a contract of employment are obviously included within the notion of property. The amendment also states:

"The provisions of such an order shall not directly or indirectly affect the conditions of service of fire brigade members".

That is what we are asking.

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We are taking the Government at their word. We are saying that Clause 1(1)(b) is a direct order to the fire authority on what to do as regards closure of stations, use of appliances and all the other things that the Government want to control by statutory duty. It does not affect the conditions of service, in law, of the firefighters. I cannot understand why the Government cannot accept that, except that the Minister says, as he said about the previous amendment, that it is all nonsense. With great respect, I do not think that is a reply worthy of the Government. I beg to move.

5.45 p.m.

Lord Rooker: My Lords, I am unable to accept Amendment No. 12, irrespective of the care and consideration with which my noble friend moved it. Along with other amendments in a similar vein, it makes it difficultalmost impossiblefor the Secretary of State to exercise the powers in the Bill that, ultimately, Parliament would give, powers that the elected House has, in principle, agreed that he should have.

The amendment is in two parts, both of which would limit the scope of the Secretary of State to issue orders under Clause 1(1)(b). The first part would prevent the use of the power to give directions about the use or disposal of property where that property consisted of rights and duties under contracts of employment. The second part would prevent the making of an order under Clause 1(1)(b), which would directly or indirectly affect the conditions of service of fire brigade members.

We discussed that in Grand Committee. The position is no different. What I said there is exactly what my noble friend repeated. If the Secretary of State were to judge that action to change terms and conditions of staff were necessary, he would have a direct route under Clause 1(1)(a) and he would not use Clause 1(1)(b). I have made that absolutely clear.

Notwithstanding that, I accept that, under Clause 1(1)(b), there might be an incidental consequence from a direction, for example, aimed at making available facilities or equipment to those trying to provide emergency cover. Nevertheless, I am unaware of any plans to use orders under Clause 1(1)(b) to affect rights arising from contracts for work or services. To be honest, if we were to accept the amendment, we could not make such a direction. It would be impossible, even if everyone agreed that the intention was appropriate and benign.

As I said, I cannot accept any amendmentI do not want to upset anyonethat simply seeks to frustrate or make impossible the effective use of the powers. That is what this amendment seeks to do; that is what the effect would be. The public would not understand it if they were denied the protection of crucial equipment because of an exclusion about contracts. Amendment No. 12 would put an arbitrary restriction

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on the powers in the Bill and contribute nothing to public safety. Therefore, I invite my noble friend to withdraw the amendment.

Lord Wedderburn of Charlton: My Lords, the Minister ended on the sort of note that he constantly injected in Grand Committee, which I can describe only as the habit of some midfield defence players: go for the man, not the ball. He said that the amendment sought to frustrate the Bill. I hope that he will think again about that. We are trying to get clarity into the Bill. We are trying to say what the Government say they intend. What the elected House has got to do with it, I do not know. It never discussed it; it did not discuss the previous amendment or this amendment or the matters concerning them. Nor did the Government choose to explain them to the other House.

We said all that in Grand Committee. I do not want to go over the ground of Grand Committee because, in retrospect, some of it was rather painfuljust as that last remark was. We are not frustrating the Bill. We are genuinely moving amendments that concern especiallyit is truethe persons employed in fire brigades, but also the fire authorities, the employers.

My noble friend has said, quite rightly, that if they thought about it, the Government would normally seek to make an order under Clause 1(1)(b), telling the fire authorities what to do in respect of the closure of stations, use of appliances and so forth; and, if they were to think of perfecting the conditions of employment for firefighters, they would make an order under Clause 1(1)(a). I quite understand that. But he is also obliged to accept once again, as he accepted in Committee, that an incidental effect of a Clause 1(1)(b) order where no Clause 1(1)(a) order is made, would be that it would affect or be likely to affect the conditions of work of firefighters.

We do not think that it is right for the Government or for Ministers to take that power. If they mean to affect the conditions of firefighters, tell them that by way of a Clause 1(1)(a) order, although, as we have just seen on the previous amendment, they are in a terrible muddle about how that legal effect would come about. If they intend a Clause 1(1)(b) order to affect only the fire authoritiesas the Bill suggests in places, but the Government are now constrained to agree that it may affect othersthen surely this should be cleared up.

I hesitate to put it this way, but I am not interested in my noble friend's plans, as he put it. He has said that the Government have no plans or intention to do this. However, if I am defending a firefighter or a union in court, I cannot refer to that. In its judicial capacity, the House of Lords told us that in July this year in the Wilson case. Does no one read any of what is said by the noble and learned Lords in our Judicial Committee? You cannot give that remark to a court as controlling the meaning of these clauses. We are asking for it be made clear on the face of the Bill that a Clause 1(1)(b) order does not affect, in the legal sense, the conditions of work of those employed in this public service.

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If we chose the wrong wording in the amendment, then of course that is another matter. But our intention is not to frustrate the Bill and it is quite shocking to hear my noble friend on the Front Bench return to that kind of language, which was used so often in Grand Committee. However, I shall refrain from going into that territory. We have put our arguments on the record and they stand as they are. If the Minister cannot think better before Third Reading, it may and certainly should be necessary to come back to this matter. With that, I beg leave to withdraw the amendment.